When you are considering
divorce, it is common to think about the here and now; you might be worried about how your finances will be impacted by going from a household with two incomes to one, what will happen to the family home or deciding how and when you will have contact with your children. However, many couples don’t consider that although a
Final Order (formerly Decree Absolute) in divorce proceedings brings a marriage to a legal end, it doesn't end the financial commitment between the couple.
How to ensure a clean break
For some, a divorce means completely severing all ties with a former spouse and starting with a clean slate. While emotionally and personally this may be difficult, in law there are options for ensuring a clean break financially. It is important to remember that whether you have assets or not, it is vital to consider your future, because even if you don’t own your own home, have savings or pensions now, this doesn’t mean that either party won’t acquire money or assets in the future, and without a financial clean break order, a claim could still be made.
A Financial Order
A Financial Order sets out the financial arrangements between you and your former spouse or civil partner upon your divorce or dissolution. If this is reached by agreement then the couple can agree the contents of the Financial Order, this is known as a Consent Order. If they don't agree, they can make an application to ask the court to decide how the assets should be divided. A consent order will usually list the couple's assets, including any pensions, and show how the assets will be divided. It should also include personal belongings like cars and furniture, how debts will be maintained and spousal and sometimes child maintenance payments. A Consent Order must still be approved by a Judge, but this is usually a paper-only exercise.
Clean break?
A clean break order is for couples who want to end their financial commitment to each other after their divorce or dissolution. There are two types of clean break; a Capital Clean Break, which prevents either party making a claim against existing assets or assets acquired in the future, and/or an Income Clean Break which severs any claims for spousal maintenance (but not child maintenance which is dealt with separately). A clean break also extends to wills and the ability to contest a will. Without a clean break order an ex-spouse could challenge a will made after the divorce.
How long after a divorce can a claim be made?
If no financial order exists regarding finances at the time of the divorce, either party is entitled to make a claim, no matter how much time has passed. In recent years there have been several cases which highlight the risk of not having a financial order. In the case of Dale Vince and Kathleen Wyatt, a successful claim was made over 20 years after divorce. Dale Vince and Kathleen Wyatt divorced in 1992 after being married for 11 years. At the time of the divorce, neither had much money, and no financial order was made. However, Mr Vince went on to start his own successful business which grew to an estimated worth of £57M. Ms Wyatt issued an application for a financial settlement in 2011 and as there was no evidence that there had been any financial order made during the divorce proceedings, and as she had not remarried since her divorce, she was entitled to make a claim despite the fact that it was over 20 since they divorced. Ms Wyatt’s initial claim for almost £2m was not successful, however a lump sum payment of £300,000 was agreed between the parties.
Protecting your future
Even if you are not intending to become an entrepreneur or feel likely to win the lottery following your divorce, this case highlights the need to consider protecting future assets such as
inheritances, pay rises or future savings, no matter how big or small, when you are going through a divorce.
If you are considering a divorce or have already divorced without a financial order, our experienced family legal advisers can talk to you about your options.
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